31 F.

3d 203
65 Fair Empl.Prac.Cas. (BNA) 877, 93 Ed. Law Rep. 511

Susan PRESTON, Plaintiff-Appellant,

v.
COMMONWEALTH OF VIRGINIA ex rel. NEW RIVER
COMMUNITY
COLLEGE, Defendant-Appellee,
and
David R. Pierce, Chancellor State Board for Community
Colleges; Lawrence H. Framme, III, Chairman, State Board
for Community Colleges; T.A. Carter, Jr., Board Member,
State Board for Community Colleges; William D. Dolan, III,
Board Member, State Board for Community Colleges; George
H.
Gilliam, Board Member, State Board for Community Colleges;
Irving M. Groves, Jr., Board Member, State Board for
Community Colleges; Evelyn M. Hailey, Board Member, State
Board for Community Colleges; Jack L. Hite, Board Member,
State Board for Community Colleges; George J. Kostel, Board
Member, State Board for Community Colleges; Leonard W.
Lambert, Board Member, State Board for Community
Colleges;
Robert E. Parker, Jr., Board Member, State Board for
Community Colleges; Nellie B. Quander, Board Member, State
Board for Community Colleges; Dorothy W. Schick, Board
Member, State Board for Community Colleges; George J.
Stevenson, Board Member, State Board for Community
Colleges;
Doreen S. Williams, Vice Chairman, State Board for
Community Colleges; Floyd M. Hogue, President, New River
Community College; Roger K. Lewis, Board Member, New
River
Community College Board; Karen Thompson, Board Member,
New

River Community College Board; David B. Hunt, Board

Member,
New River Community College Board; Martha H. Bolt, Board
Member, New River Community College Board; David G.
Larsen,
Board Member, New River Community College Board; Shirley
M.
Gerken, Board Member, New River Community College
Board;
William H. Elmore, Board Member, New River Community
College
Board; George F. Penn, Sr., Board Member, New River
Community College Board; Jerry R. Whitehurst, Board
Member,
New River Community College Board; H.B. Whitt, Jr., Board
Member, New River Community College Board, Defendants.
No. 93-1268.

United States Court of Appeals,

Fourth Circuit.
Argued Oct. 25, 1993.
Decided Aug. 3, 1994.

ARGUED: Jeffrey Alan Fleischhauer, Bird, Kinder & Huffman, P.C.,

Roanoke, VA, for appellant. Guy Winston Horsley, Jr., Sr. Asst. Atty.
Gen., Office of the Atty. Gen., Richmond, VA, for appellee. ON BRIEF:
Donald W. Huffman, L. Brad Bradford, Bird, Kinder & Huffman, P.C.,
Roanoke, VA, for appellant. Stephen D. Rosenthal, Atty. Gen. of VA,
Milton K. Brown, Jr., Deputy Atty. Gen., Neil A.G. McPhie, Sr. Asst.
Atty. Gen., Office of the Atty. Gen., Richmond, VA, for appellee.
Before RUSSELL and WILKINS, Circuit Judges, and SMITH, United
States District Judge for the Eastern District of Virginia, sitting by
designation.
Affirmed by published opinion. Judge WILKINS wrote the opinion, in

which Judge DONALD RUSSELL and Judge REBECCA BEACH

SMITH joined.
OPINION
WILKINS, Circuit Judge:

Susan Preston brought this action pursuant to Title VII of the Civil Rights Act
of 1964, 42 U.S.C.A. Sec. 2000e et seq. (West 1981 & Supp.1994), and Title
IX of the Education Amendments of 1972, 20 U.S.C.A. Sec. 1681 et seq. (West
1990), alleging that her employer, New River Community College, retaliated
against her for filing a claim of employment discrimination.1 A jury concluded
that the College had discriminated against Preston in its consideration of her for
the position of activities counselor in 1989, but that Preston would not have
received the position even if the College had not discriminated against her. The
district court ruled that Preston was not entitled to damages, injunctive relief, or
attorney's fees. She appeals, claiming that the determination of the jury that she
would not have been awarded the position of activities counselor in the absence
of the College's retaliation does not foreclose her entitlement to relief under
Title IX. We affirm.

I.
2

Preston was employed by the College in 1980 as a counselor for student

support services. In 1984 she and two other female employees of the College
filed a claim of discrimination with the Office of Civil Rights of the
Department of Education and with the Equal Employment Opportunity
Commission (EEOC), charging that the College discriminated against them in
its hiring practices on the basis of race and gender. Thereafter, in June and
December 1985, Preston applied for, but was not awarded, the position of
counselor for student development. In 1989 she applied for, but was denied, the
position of activities counselor; and in 1990 she filed this action, alleging that
the College failed to award her the position of activities counselor in retaliation
for filing the 1984 discrimination charge.

At the conclusion of the trial, the court submitted to the jury a verdict form
containing two special interrogatories. The first special interrogatory asked the
jury whether it found that Preston's filing of the discrimination charge in 1984
was "a substantial or motivating factor in the College's decision not to award
the position of activities counselor to plaintiff ... in 1989." The jury answered in
the affirmative. The second special interrogatory asked the jury whether it

found that Preston would have been awarded the position of activities counselor
in 1989 if she had not filed the employment discrimination charge in 1984. The
jury responded in the negative, thus stating that Preston would not have
received the position even if the College had not discriminated against her.
4

The district court apparently concluded that the decision of the jury, that
Preston would not have received the position of activities counselor even if the
College had not discriminated against her, foreclosed any recovery. The court
later denied, apparently on the same reasoning, Preston's motion to reconsider
in which she maintained that she was entitled to injunctive relief, damages, and
attorney's fees under Title IX. Preston appeals this latter ruling.

II.
Title IX provides in pertinent part:
5 person in the United States shall, on the basis of sex, be excluded from
No
participation in, be denied the benefits of, or be subjected to discrimination under
any education program or activity receiving Federal financial assistance.
6

20 U.S.C.A. Sec. 1681(a). An implied private right of action exists for

enforcement of Title IX. Cannon v. University of Chicago, 441 U.S. 677, 99
S.Ct. 1946, 60 L.Ed.2d 560 (1979). This implied right extends to employment
discrimination on the basis of gender by educational institutions receiving
federal funds. North Haven Bd. of Educ. v. Bell, 456 U.S. 512, 102 S.Ct. 1912,
72 L.Ed.2d 299 (1982). Retaliation against an employee for filing a claim of
gender discrimination is prohibited under Title IX.2 The question before this
court, then, is whether the determination of the jury that Preston would not
have received the position of activities counselor even if she had not been the
victim of intentional discrimination forecloses her right to any recovery under
Title IX.

In deciding whether a private right of action existed under Title IX, the
Supreme Court wrote:

8
Only
two facts alleged in the complaints are relevant to our decision. First, petitioner
was excluded from participation in the respondents' medical education programs
because of her sex. Second, these education programs were receiving federal
financial assistance at the time of her exclusion. These facts, admitted arguendo by
respondents' motion to dismiss the complaints, establish a violation of ... Title IX.
9

Cannon, 441 U.S. at 680, 99 S.Ct. at 1949 (emphasis added). In reciting the

facts that the Court deemed adequate to allege a violation of Title IX, it
included the fact that the improper discrimination caused harm to the claimant.
Thus, it implicitly recognized the necessity of causation.
10

In addition, the Supreme Court has rejected, in other contexts, the notion that an
alleged victim of illegal retaliation in employment is entitled to relief merely
because improper considerations played a part--even a substantial part--in the
decision-making process. See Mt. Healthy City Sch. Dist. Bd. of Educ. v.
Doyle, 429 U.S. 274, 285-86, 97 S.Ct. 568, 575, 50 L.Ed.2d 471 (1977) (stating
that a decision not to rehire an employee, based in substantial part on
employee's engaging in constitutionally protected activity, does not constitute a
"violation justifying remedial action," when the employee would not have been
rehired in any event). Rather, the Court has held that an employer is not liable if
it would have reached the same employment decision "in the absence of the
protected conduct." Id. at 287, 97 S.Ct. at 576. This is so, the Court reasoned,
because to vindicate protected rights it is unnecessary to place an individual
who suffered discrimination in a better position than the individual would have
occupied if the discrimination had not occurred. Id. at 285-86, 97 S.Ct. at 57576.

11

This reasoning has been adopted and applied in the Title VII context. See, e.g.,
Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104 L.Ed.2d 268
(1989). And, although the Supreme Court has specifically reserved the question
of whether Title IX claims should be governed by the same principles
applicable to Title VII actions, see Franklin v. Gwinnett County Pub. Schs., --U.S. ----, ---- n. 4, 112 S.Ct. 1028, 1032 n. 4, 117 L.Ed.2d 208 (1992), most
courts that have addressed the question have indicated that Title VII principles
should be applied to Title IX actions, at least insofar as those actions raise
employment discrimination claims. See Roberts v. Colorado State Bd. of
Agric., 998 F.2d 824, 832 (10th Cir.) (Title VII is " 'the most appropriate
analogue when defining Title IX's substantive standards.' "), cert. denied, --U.S. ----, 114 S.Ct. 580, 126 L.Ed.2d 478 (1993); Cohen v. Brown Univ., 991
F.2d 888, 902 (1st Cir.1993) (indicating that application of Title VII principles
in Title IX employment discrimination actions was "perhaps" appropriate);
Lipsett v. University of P.R., 864 F.2d 881, 896-97 (1st Cir.1988) (holding
Title VII concepts apply in Title IX employment discrimination action);
O'Connor v. Peru State College, 781 F.2d 632, 642 n. 8 (8th Cir.1986) (stating
that Title IX employment discrimination claim was duplicative of plaintiff's
Title VII claim); see also 28 C.F.R. Sec. 42.604 (1993). But see Franklin v.
Gwinnett County Pub. Schs., 911 F.2d 617, 622 (11th Cir.1990) (refusing to
apply Title VII principles to Title IX), rev'd on other grounds, --- U.S. ----, 112
S.Ct. 1028, 117 L.Ed.2d 208 (1992). Indeed, the only court of appeals to have

actually applied Title IX in the employment discrimination context has

suggested that a plaintiff's Title IX claim would be defeated by proof that the
defendant would have reached the same employment decision absent the
improper motive. Lipsett, 864 F.2d at 897-899. We agree that Title VII, and the
judicial interpretations of it, provide a persuasive body of standards to which we
may look in shaping the contours of a private right of action under Title IX.
12

The question remains, however, whether we should construe Title IX as Title

VII was construed at the time the events underlying this action occurred or
whether we should construe it in accordance with the way Title VII has been
amended by Congress in the interim. In 1991 Congress passed the Civil Rights
Act of 1991(CRA). Section 107 of the CRA legislatively overruled the holding
of the Supreme Court in Price Waterhouse with respect to causation by adding
the following language:

13 unlawful employment practice is established when the complaining party

[A]n
demonstrates that race, color, religion, sex, or national origin was a motivating factor
for any employment practice, even though other factors also motivated the practice.
14

42 U.S.C.A. Sec. 2000e-2(m) (West Supp.1994).3 This language permits a

finding that an employer has committed an unlawful employment practice
whenever an improper consideration is a motivating factor in an employment
decision, irrespective of whether the employer would have taken the same
action in the absence of the improper consideration. However, when an
employee demonstrates a violation of Sec. 2000e-2(m), the relief available may
be limited:

15 a claim in which an individual proves a violation under section 2000e-2(m) of

On
this title and a respondent demonstrates that the respondent would have taken the
same action in the absence of the impermissible motivating factor, the court-16 may grant declaratory relief, injunctive relief (except as provided in clause (ii)),
(i)
and attorney's fees and costs demonstrated to be directly attributable only to the
pursuit of a claim under section 2000e-2(m) of this title; and
17 shall not award damages or issue an order requiring any admission,
(ii)
reinstatement, hiring, promotion, or payment, described in subparagraph (A).
18

42 U.S.C.A. Sec. 2000e-5(g)(2)(B) (West Supp.1994).

19

If Congress had provided that Sec. 107 should be applied retroactively, we

could easily conclude that Title IX should be construed in accordance with the

amended Title VII provision because an express retroactivity provision would

indicate that the Price Waterhouse Court misconstrued congressional intent in
interpreting Title VII. However, Congress failed to express a clear intent that
Sec. 107 apply retroactively. See Rivers v. Roadway Express, Inc., --- U.S. ----,
---- - ----, 114 S.Ct. 1510, 1515-17, 128 L.Ed.2d 274 (1994); Landgraf v. USI
Film Prods., --- U.S. ----, ---- - -----, 114 S.Ct. 1483, 1495-96, 128 L.Ed.2d 229
(1994). Thus, we are left to decide whether, in the absence of a clear
congressional directive, Sec. 107 should be applied retroactively to conduct
occurring before its effective date or, if not, whether Title IX should be
construed in accordance with Sec. 107 in any event.
20

The Supreme Court has recently ruled that substantive provisions of Secs. 101
and 102 of the CRA should not be applied to conduct occurring before the
effective date of the CRA. Rivers, --- U.S. at ---- - ----, 114 S.Ct. at 1519-20;
Landgraf, --- U.S. at ----, 114 S.Ct. at 1508. In discussing whether Sec. 102
should be applied to conduct antedating the effective date of the CRA, the
Court noted that a statute operates retrospectively when it "attaches new legal
consequences to events completed before its enactment," Landgraf, --- U.S. at ---, 114 S.Ct. at 1499, i.e., when it "impair[s] rights a party possessed when he
acted, increase[s] a party's liability for past conduct, or impose[s] new duties
with respect to transactions already completed," id. at ----, 114 S.Ct. at 1505. To
the extent that Sec. 107 provides for limited injunctive relief and attorney's fees
when an employer proves that it would have made the same employment
decision in the absence of an impermissible motivating factor, Sec. 107 cannot
be said to increase an employer's liability for or impose new duties with respect
to prior conduct. See id. at ----, 114 S.Ct. at 1501 (noting that intervening
statutes affecting the propriety of prospective relief do not have a retroactive
impact when applied to cases pending on their effective date); id. at ----, 114
S.Ct. at 1503 (recognizing that a new statute authorizing attorney's fees does
not operate to " 'impose an additional or unforeseeable obligation' ").
Nevertheless, because under prior law a finding that an employer would have
reached the same employment decision absent the improper motivating factor
rendered the employer free from any liability, not merely free from liability for
certain remedies, see Price Waterhouse, 490 U.S. at 258, 109 S.Ct. at 1794-95,
we must conclude that Sec. 107 alters the legality of the employer's conduct
and thus affixes new legal consequences to past conduct.

21

Similarly, this reasoning convinces us that applying an interpretation of Title IX

in accordance with Title VII as amended by the CRA to conduct occurring
before the effective date of the amendment would amount to an impermissible
retroactive application. While no settled interpretation of Title IX had been
rendered by the Supreme Court at the time the challenged conduct occurred,

the sole court of appeals to have addressed the issue had ruled that a Title IX
employment discrimination claim should be interpreted in accordance with
principles governing Title VII. See Lipsett, 864 F.2d at 897-899. Accordingly,
we conclude that Title IX should be construed as Title VII was when the
conduct at issue occurred.
22

In sum, we hold that the decision of the jury that Preston would not have
received the position of activities counselor even if she had not filed the
discrimination claim in 1984 compels a conclusion that the College did not
violate Title IX. Thus, Preston was not entitled to relief.

III.
23

Finally, the district court properly denied Preston's request for attorney's fees.
Congress provided for recovery of attorney's fees in Title IX actions in 42
U.S.C.A. Sec. 1988(b) (West Supp.1994). This section provides in pertinent
part:

24 any action or proceeding to enforce a provision of ... [Title IX], ... the court, in its
In
discretion, may allow the prevailing party, other than the United States, a reasonable
attorney's fee as part of the costs.
25

42 U.S.C.A. Sec. 1988(b). Discussing the prevailing party requirement under

this section, the Supreme Court has stated:

26 qualify as a prevailing party, a civil rights plaintiff must obtain at least some
[T]o
relief on the merits of his claim. The plaintiff must obtain an enforceable judgment
against the defendant from whom fees are sought or comparable relief through a
consent decree or settlement. Whatever relief the plaintiff secures must directly
benefit him at the time of judgment or settlement.
27

Farrar v. Hobby, --- U.S. ----, ----, 113 S.Ct. 566, 573, 121 L.Ed.2d 494 (1992)
(citations omitted). As we have previously discussed, because the jury ruled
against Preston on the issue of causation, she was not entitled to any relief.
Thus, she is not a prevailing party within the meaning of Sec. 1988 and is not
eligible for an award of attorney's fees thereunder.

IV.
28

We conclude that the district court properly refused to award damages and
injunctive relief to Preston because the jury found that she would not have
received the position of activities counselor in 1989 even if she had not filed the

1984 discrimination charge.4 Inasmuch as Preston is not entitled to recover, she

cannot be a prevailing plaintiff under Sec. 1988. Accordingly, the district court
correctly denied Preston's request for attorney's fees. The decision of the district
court is affirmed.
29

AFFIRMED.

The district court originally granted summary judgment against Preston on her
claim under Title VII for failure to satisfy the filing requirements of 42
U.S.C.A. Sec. 2000e-5 and dismissed her claim under Title IX for failure to
state a claim upon which relief could be granted. This court reversed in part and
remanded for further proceedings. Preston v. Commonwealth of Va., No. 912020, 1991 WL 156224 (4th Cir. Aug. 16, 1991). We held that Preston had
raised a genuine issue of material fact concerning whether her filing was timely
with respect to the last alleged incident of discrimination--her claim that she
was denied the position of activities counselor in 1989--and consequently
summary judgment on this portion of her Title VII claim was improper. Id., slip
op. at 6. In addition, without reaching the question of whether Preston would be
entitled to monetary damages, we held that the district court erred in dismissing
Preston's Title IX claim because she would be entitled to at least prospective
equitable relief were she to prove her Title IX claim. Id., slip op. at 7
During the trial that followed our remand, Preston's testimony and supporting
documentation demonstrated that she timely complied with the filing
requirements of 42 U.S.C.A. Sec. 2000e-5. Moreover, following our remand the
Supreme Court ruled that compensatory damages may be awarded for
intentional violations of Title IX. See Franklin v. Gwinnett County Pub. Schs., -- U.S. ----, 112 S.Ct. 1028, 117 L.Ed.2d 208 (1992).

Congress intended that Title IX be interpreted and enforced in the same manner
as Title VI of the Civil Rights Act of 1964, Cannon, 441 U.S. at 696, 99 S.Ct.
at 1957-58, and the Department of Education regulations incorporate by
reference into Title IX all procedural provisions applicable to Title VI, 34
C.F.R. Sec. 106.71 (1993). One of these regulations, 34 C.F.R. Sec. 100.7(e)
(1993), prohibits retaliation for filing a claim of discrimination. We previously
concluded that the Secretary of Education's determination that Title IX should
be read to prohibit retaliation based on the filing of a complaint of gender
discrimination is reasonably related to the purpose of Title IX and therefore is
entitled to deference by this court. See Preston, No. 91-2020, slip op. at 7

The events underlying Preston's claim occurred in 1989, and she filed her

complaint in 1990. The effective date of Sec. 107 of the CRA is November 21,
1991. 42 U.S.C.A. Sec. 2000e-2 note (West Supp.1994) (Effective Date of
1991 Amendment)
4

Preston also maintains that the district court erred in refusing to permit her to
introduce two tapes she had made of telephone conversations that she had with
friends who served on the committee that recommended candidates for the
position of activities counselor in 1989. Preston, however, cannot complain
about a refusal of the district court to play the first tape to the jury. As Preston
conceded at oral argument, the district court did not exclude the tape. Rather,
after the district court initially indicated its intention to permit the tape to be
played, counsel for Preston and the College entered a stipulation concerning
what the jury would be told about this tape
With respect to the second tape, Preston testified to her recollection of her
conversation with friend and committee member Jim Brumagin. Brumagin later
testified for the College and was cross-examined; however, Preston's counsel
did not attempt to impeach Brumagin with the tape. At the close of the
College's case, Preston attempted to offer the tape of her conversation with
Brumagin as rebuttal evidence. The district court refused to admit the tape on
the basis that it was not proper rebuttal evidence.
A district court possesses the discretion to control the presentation of evidence,
and its decision to refuse to admit evidence because it is not properly within the
scope of rebuttal will be reversed only for an abuse of discretion. See Geders v.
United States, 425 U.S. 80, 86-87, 96 S.Ct. 1330, 1334, 47 L.Ed.2d 592 (1976).
We cannot say that the refusal of the district court to permit the introduction of
the tape was an abuse of discretion. Further, because the tape was not relevant
to show that Preston would have received the position of activities counselor
absent discrimination, any error in the refusal of the district court to introduce
the tape was harmless.